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On-call duty or on-call duty? That is the question here!

April 2021 · Estemated readtime: Min

Die Unterschiede haben für den Arbeitgeber insbesondere finanziellen Konsequenzen

Whether plumbers, doctors or IT experts - in emergencies, a quick response is required, even outside of actual working hours. The solution: setting up on-call duty and/or standby duty. But what are the differences and what are the practical consequences for employers?

What is the difference between on-call duty and standby duty?

The basic rule is that an employee who is on call

  • must be present at a location specified by the employer within a period of time

  • at a location specified by the employer and must

  • start work immediately when called upon to do so.

In contrast, an employee on on-call duty must

  • be available at all times within a period specified by the employer (outside his regular working hours),

  • but may stay at a place of his or her choice from which he or she must take

  • from which he or she must take action as required.

Practical consequences for employers

On-call duty and on-call duty have some things in common: The employee is only obliged to perform both forms of work if there is a corresponding basis in the employment contract or collective agreement. In addition, in companies with a works council, its co-determination rights must be observed in both cases.

Beyond these similarities, however, there are also significant differences - with financial consequences in particular:

Classification as working time:

The qualification of an activity as working time within the meaning of the Working Hours Act has consequences: If working time exists, the maximum weekly working time of a maximum of 60 hours must be observed in addition to the maximum daily working time of a maximum of 10 hours. (However, these maximum working hours may only be reached in exceptional cases and on a selective basis: The average daily working time may not exceed 8 hours and the average weekly working time may not exceed 48 hours within six calendar months or 24 weeks). Finally, an uninterrupted rest period of 11 hours must be observed after the end of the working time until the start of the next working time, during which the employee may not be called upon to perform any work.

  • On-call duty is working time. The Working Hours Act must therefore be observed without exception! This means in particular that the regular working time and the on-call time (added together) may not exceed the daily maximum working time of 10 hours. If the employee has already worked a total of 8 hours during his regular working hours before the start of the on-call duty, the employer may only order an additional on-call duty of 2 hours.

  • On-call duty is rest time. Only the time during which the employee is actually called upon to perform work during on-call duty qualifies as working time within the meaning of the Working Hours Act. The rest period is therefore interrupted with each call to work. With the consequence that after the end of the last actual work assignment during on-call duty, the entire statutory rest period of (uninterrupted) 11 hours begins again and must be observed. This also applies if this rest period overlaps with the employee's next regular shift.

Compensation obligation of the employer:

  • On-call duty is working time subject to remuneration. This also applies if the employee is not actually called upon to work even once during his on-call time! However, a separate remuneration agreement may be concluded for on-call duty: This can provide for financial compensation (which may be less than the employee's regular compensation) or (paid) time off in lieu.

  • Periods of on-call duty, on the other hand, do not have to be remunerated if the employee is not called upon to actually perform work. Only the actual work performance is to be remunerated with the regular (hourly) wage of the employee. In practice, however, a lump-sum on-call allowance is regularly agreed upon, which is paid to the employee for being available for work.

Important practical advice: Not everywhere that says "on-call duty" is also "on-call duty"!

For the correct classification, it is much more important whether the employee can actually freely choose his location. The European Court of Justice (ECJ) recently ruled that a period of time designated as "on-call duty" must actually be considered working time (and thus does not constitute on-call duty, but rather on-call duty) if the employee can freely determine his or her location "on paper", but is nevertheless significantly impaired in the way he or she spends his or her free time (for example, due to very short response times). We recently reported on this on our blog.

Only two weeks after the ECJ's decision, the Federal Labor Court (BAG) breathes life into these abstract criteria for the first time: The employee's obligation to immediately answer business calls during on-call duty is not associated with such a significant impairment of the employee's free time, which necessarily leads to a qualification as on-call duty (BAG, judgment dated March 25, 2021 - 6 AZR 264/20). The complaint was filed by a senior physician from the Cologne area who had to perform so-called medical background duties. During this time the physician was obligated to react partially within 30 minutes by telephone to organ donation offers. The information required for this was to be taken from a file folder, which he had to carry with him during the on-call duty. However, there were no specifications regarding the location or the period of time within which work had to be started on site at the hospital from the on-call duty.

Conclusion:

It remains to be seen which response times will be qualified in the future by case law and/or the legislator as just sufficient to give the employee on on-call duty sufficient room for his leisure time activities.

It is already clear that, in the opinion of the BAG, the employer can effectively order on-call duty, during which the employee must be reachable by telephone and perform work on call from a distance ("remote").

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